The main legal point established in the judgment is that there can be no estoppel against an act of the legislature and parties cannot waive or contract themselves out of the law of limitation.

Arnold White, C.J.

1. The first question for consideration in this appeal is whether Wallis J.s finding on the question of estoppel is right.

2. The circumstances in which the question has arisen are these:--

On the 12th December 1904 there was an agreement (Exhibit B) between the plaintiff and the defendants under which the plaintiff leased to the defendants his interest in a certain business for an amount which had been fixed by the arbitrators. On the same date, for the consideration specified in, Exhibit B the defendants executed in the plaintiffs favor a promissory note for Rs. 30,000 payable by monthly instalments up to April 1906.

3. In August 1906 the plaintiff instituted a suit against the defendants in which he asked that the release (Exhibit B) should be set aside on the ground that it had been obtained by fraud. He declined to accept instalments under the pronote after April 1906. Fourteen instalments have not been paid. The plaintiffs suit was dismissed. On appeal the appellate Court declined to set aside the release but held the plaintiff was entitled to receive a further sum of Rs. 1,400 odd with which, he ought to have been credited on the taking of the account, as representing his share of certain debts which had been collected by the firm. In the Judgment their Lordships observe " Mr. Ramachandra Aiyar further claims payment of the amount due under the promissory note. The defendants do not deny their liability to pay and they submit they have been always ready and willing to pay but they contend that no decree for the same should be passed in the suit and we think they are right."

4. The Judgment of the Appellate Court was delivered on the 19th January 1910. On the 25th January the plaintiff demanded payment of the balance of instalments on the promissory-note Rs- 14000 and then brought the present suit. The defendants pleaded limitation. Mr. justice Wallis gave the plaintiff a decree for the amount claimed. It was contended that a statement by one of the defendants in an affidavit (Exhibit G) amounted to an acknowledgment within Section 19 of the Limitation Act. I agree with the learned judge that this statement cannot be regarded as an acknowledgment within the meaning of the Section

5. The learned judge was not prepared to hold that Section 115 of the Evidence Act applied but he held on the facts that the defendants were precluded from pleading the statute. The learned judge; after citing certain passages from Mr. Bigelows treatise on the Law of Estoppel, puts it, thus--" It appears to me that it would be opposed to good conscience to allow defendants, who for the purpose of resisting an application against them, have stated that they did not deny their liability and were always ready and willing to pay to turn round immediately afterwards and allege that long before the date of their admission the suit had become barred by limitation."

6. The application which the defendants resisted was an application made on behalf of the plaintiff in the suit of 1906 (in which he sought to have the release set aside) that he should be given a decree for the unpaid instalments on the promissory-note. The plaintiff had refused to accept instalments after April 190(3 because he had repudiated the agreement under which the instalments were payable. It was not a case, as it seems to me, in which leave to amend by adding an alternative claim for payment of the instalments could properly have been given. The learned Judges themselves say that they think the defendants were right in their contention that no decree on the note could be given in that suit. At the time when as it is suggested, leave to amend might have been given, the right to recover some, at any rate, of the instalments had become time-barred. It was not a case of leave to amend by setting up a claim to a different relief on the same cause of action but by setting up a cause of action wholly inconsistent with that set up in the plaint. As a matter of fact no